The Court of Appeal today refused an application for leave to appeal against sentence by Thien Thi Tran (‘the applicant’).  

In March 2017 the applicant pleaded guilty in the County Court to attempting to possess a commercial quantity of a border controlled drug, heroin. At the same time, a co-offender, pleaded guilty to importing a commercial quantity of the same drug. The offending of the applicant and co-offender related to the importation of a parcel containing 5,601.6 grams of heroin with a value of approximately $877,000.

The applicant was sentenced to eight years’ imprisonment with a non-parole period of five years. The co-offender was sentenced to four years’ imprisonment with a non-parole period of two years and six months. In sentencing, the judge indicated that he would have imposed the same sentence on the co-offender as the applicant had it not been for the co-offender’s undertaking to assist the authorities in future prosecutions.  

According to the applicant’s argument, there was one significant difference in the entirety of the circumstances of the offending and the offenders. It was this: at the time of sentence, the applicant and co-offender each had a prior conviction for drug offences. The co-offender had been convicted in 1999 of supplying a prohibited drug in a quantity greater than a commercial quantity and had been sentenced to a minimum of three years’ imprisonment for that offence. The applicant had also committed drug offences there being three findings of guilt but only one conviction, in the period 2003-2004. But they were simply possession offences, involving a heroin user.

Justice Ashley, with whom Justice Osborn agreed, refused leave to appeal and rejected the applicant’s contention that the sentencing judge erred by misapplying the parity principle. Their Honours concluded that the sentencing judge had dealt adequately with the personal circumstances of the offenders, their prior offending and respective roles in the circumstances of the offending. They observed that the applicant’s argument had involved an essentially mechanical, and flawed, approach. Their Honours concluded that it was not reasonably arguable that it was not open to the trial judge in the circumstances not to differentiate between the two offenders in the manner pressed by the applicant.

Justice Whelan found that leave to appeal ought to be granted on the basis that the proposed ground of appeal was arguable given the co-offender’s prior conviction but nevertheless held that the appeal should be dismissed for the reasons given by Justice Ashley.

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NOTE:  This summary is necessarily incomplete.  It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons.  The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

Read the Court's full judgment on AustLII (External link)

Author
Supreme Court of Victoria
Publisher
Supreme Court of Victoria
Date of Publication

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